By Tinker Spitz, Art Samuels and Madeleine Blot

December 17, 2000 | 7:00 p.m

Talk about a Constitutional crisis: When the Supreme Court

threw out a Georgia law that forced Indians off lands given them by treaty, the Southern lawmakers simply pretended the decision didn't exist. All eyes turned to the President, Andrew Jackson, to see if he would support the federal judiciary. Jackson, no great fan of the Court and its famous Chief Justice, thundered: "John Marshall has made the decision-now let him enforce it!" How times have changed. A century and a half later, two would-be Presidents were reduced to supplicants as they waited anxiously-helplessly, really-for the Court to decide, in essence, which one of them would get the keys to the White House. Presidents from Jackson to Franklin Roosevelt to Ronald Reagan were accused of politicizing the judicial process. Now, after a quarter-century and more of judicial activism, the Supreme Court finds itself adjudicating the political process. On the fateful day when Antonin Scalia persuaded four of his colleagues to stop the Florida re-count, thus setting in motion events that could lead to a Court-appointed Presidency, the nation's highest court put its reputation and its credibility in jeopardy. At least, that's the view of many New York lawyers, who were stunned by the Court's decision to re-enter the Florida fray. "I admire the Supreme Court, but this time they totally blew it," said Stephen Case, a partner at Davis, Polk & Wardwell, after the Court halted the re-count. "They sanctimoniously intoned, in opinion after opinion, the necessity of deferring to state law and minimizing the role of federal government, and then all of a sudden they do a switcheroo-and it reeks." Rick Kurnit, a partner at Frankfurt, Garbus, Kurnit, Klein & Selz, agreed: "The Supreme Court has certainly used up a good deal of its capital in pursuing result-oriented justice as opposed to following the law …. I think Scalia made a political judgment that since a [George W. Bush Presidency] is the way it's going to come out, we should cut [the process] short." But even with the court's flaws exposed, most feel the outcome will be accepted by the public. "With the ups and downs of the process ... no one should lose sight of the fact that the system is working," said Martin Pollner, a partner at Loeb & Loeb who worked at the Justice Department under Robert F. Kennedy. "We don't have rebels in the streets, and we should all be assured that no matter what the Supreme Court decision will be, we will all live with it and move on." But some of Mr. Pollner's colleagues are finding it hard to do just that. Before the intervention, most lawyers would have agreed with former Governor Mario Cuomo's assessment of the judiciary, particularly the high and mighty Supreme Court. "Between politicians and judges," Mr. Cuomo said before the decision, "who do you have more confidence in?" The answer would have been judges, but Mr. Scalia's opinion and the Court's action have lawyers reconsidering that answer. Morton Fry, an intellectual property lawyer of counsel to Stairs, Dillenbeck, Finley & Rendon and co-chair of Lawyers for Gore-Lieberman, went so far as to compare the Supreme Court to John Sweeney, the Republican Congressman from upstate who admitted to instructing allies to organize the chaotic protest that preceded the Miami-Dade County canvassing board's decision to halt any re-counts of the Presidential ballots. "Are they simply going to shut down the process?" Mr. Fry asked of the Supreme Court justices. "Or are they going to be helpmates to the process? Is the Supreme Court here to help out the people's vote, or is it simply another person playing games with the process, like Mr. Sweeney?" The bulk of the accusations of partisanship and questionable motivation has been directed at Justice Scalia. Mr. Bush already has referred to him as the ideal justice, which didn't enhance his aura of objectivity. Then there was the somewhat sticky issue of his son being a partner at Gibson, Dunn & Crutcher, the same firm that is home to Bush lawyer Theodore Olson. Mr. Kurnit accused Justice Scalia of possibly "campaigning for the chief justice slot, which would seem to be his reachable expectation." Bob Hallman, a litigation partner at Cahill, Gordon & Reindel, said Justice Scalia's opinion was "intended to protect Bush from the possibility that the votes might be counted …. If there was ever a political objective, and a political assessment and a political purpose, that was it. I found it disturbing that a Supreme Court justice would use blatant political reasoning to justify issuing a stay." Disturbing? Perhaps. Surprising? Well, maybe not. As Larry Lorber, a partner at Proskauer Rose pointed out, "The notion that the Supreme Court justices are political neuters is absurd. They're all appointed by politicians, and they all didn't come out of thin air." Clubhouse Lawyers No, they didn't, and they never will. Judges are either appointed by elected officials or, as in the case of New York Supreme Court justices, they run for election themselves. And that, of course, means that they are intensely political people. The famously complex relationship between the Brooklyn bench and the Kings County Democratic Committee should put to rest forever the notion that judges, in Mr. Lorber's words, "come out of thin air." No, indeed: The air is quite thick-with politics-at the Thomas Jefferson Democratic Club in Brooklyn, the onetime home base of many a Brooklyn jurist. Why are so many lawyers down on the Court? To begin with, there's the very public nature of the justices' disagreement. Mr. Lorber reduced Justice Scalia's concurring opinion and Justice John Paul Stevens' strongly worded dissent to a "public food fight" that amounted to nothing more than "tough-talking back and forth at the highest level you can get." When that tough-talking was conducted behind the bronze doors of the Supreme Court building, it only added to the mystique and majesty of the Court. But now that every argument is subject to instantaneous scrutiny, the Supreme Court has lost more than a little of its aura. As Leonard Garment, counsel to President Nixon and author of In Search of Deep Throat , put it, "Democracy under a microscope is messy." To say the least. The lawyers may have come away from this long process with a lower opinion of the Supreme Court, but-perhaps not surprisingly, for reasons ranging from collegiality to shared opinions-their view of David Boies hasn't changed. If anything, they think even more highly of him. Mr. Pollner watched with some amazement as Mr. Boies was transformed into a media superstar. "One of the fascinating aspects of new technology is how a case can [transform] someone instantly into an international celebrity," he said. "Clarence Darrow took many years to accomplish what today has happened in 30 seconds." In the view of his admiring colleagues, Mr. Boies waltzed into the U.S. Supreme Court on Dec. 11 after a mere 48 hours of preparation and more than held his own. It was not the performance of his life-Justice Scalia was tough on him, and Mr. Boies at times appeared to be derailed by his questions-but it was still vintage Boies, balancing straight talk and sound bites, preparation and press-time. "I'm plenty jealous," said Richard Emery, a partner at Emery, Cuti, Brinckerhoff & Abady, "but nobody can take anything away from him …. He's a triple threat-a trial attorney, an appellate attorney and a media attorney. And he may win. If he loses, he'll have done more than any attorney could be expected and done it with aplomb." Not everybody, it should be said, has come away convinced that the Supreme Court has foolishly wasted its reputation for impartiality. Robert Giuffra, a partner at Sullivan & Cromwell and a former law clerk to Chief Justice Rehnquist, thought the attacks on the Court were poorly reasoned. "One of the really unfair things about this is that people try to view the Supreme Court as a super-legislature," he said. "The Supreme Court applies the Constitution, they apply rules, they have to explain their reasons in their decision. It would be a tragedy if people viewed the Court as just another partisan branch of government. My old boss, Chief Justice Rehnquist, cares very deeply about history." And John Feerick, dean of Fordham Law School, expressed his optimism as well: "I guess maybe because I'm an idealist, I think a decision of the Court does represent the best thinking of the institution with respect to the problem at hand. I have a hard time putting a label on the Supreme Court's decision as a political decision. There's no formula to deal with the motivation." But that won't prevent people from trying to come up with one.